581 F.

2d 22

UNITED STATES of America, Appellee,

v.
David CAMPBELL and Michael Tartt, Defendants-Appellants.
Nos. 619, 620, Dockets 77-1418, 77-1419.

United States Court of Appeals,

Second Circuit.
Argued Feb. 8, 1978.
Decided June 29, 1978.

Ralph S. Naden, New York City, for defendant-appellant David

Campbell.
Julius Wasserstein, Brooklyn, N. Y., for defendant-appellant Michael
Tartt.
Lawrence Iason, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr.,
U. S. Atty. for the Southern District of New York, Robert J. Jossen, Asst.
U. S. Atty., New York City, of counsel), for appellee.
Before FEINBERG, MANSFIELD and VAN GRAAFEILAND, Circuit
Judges.
MANSFIELD, Circuit Judge:

David Campbell and Michael Tartt appeal from judgments of conviction

entered in the Southern District of New York following an eight-day trial
before Judge Lawrence W. Pierce and a jury. Tartt was convicted on all three
counts of an indictment that charged him with conspiracy to commit armed
bank robbery, 18 U.S.C. 371, bank robbery, 18 U.S.C. 2113(a), and armed
bank robbery, 18 U.S.C. 2113(d). Campbell was convicted only on the
conspiracy count, and acquitted on the two substantive counts.1

The principal claim on appeal is that the district court committed reversible
error in not excluding evidence seized from the defendants' apartment.
Appellant Tartt also challenges the admission of certain identification testimony

at trial. Finding these claims unpersuasive, we affirm.

3

The essential facts of the crime are not disputed. On April 4, 1977, at
approximately 10:30 A.M., three men, including Wallace Hall, who testified
against appellants at trial, robbed a branch of the Chemical Bank at Cathedral
Parkway and Broadway in New York City. Approximately.$19,000 was taken.
Two of the robbers were armed, one with a revolver, the other with a sawed-off
shotgun. Moments after the robbery Hall became separated from his
accomplices during their getaway, and was arrested in a subway station near
the bank.

Hall was taken back to the bank where he was identified by eye-witnesses as
one of the robbers. He was then questioned by New York City police officers
and federal agents, and between 1:00 and 2:00 P.M. in the afternoon he
confessed to his participation in the crime. Hall admitted that his accomplices
were friends known to him only as "Dave" and "Mike," and that they lived in
the same apartment building where Hall lived. He also gave the officers general
descriptions of the two men.

Between 2:00 P.M., when this information was obtained from Hall, and 6:00
P.M., when appellants were arrested, police detectives and federal agents
worked together on the investigation. In addition to sharing responsibility for
the continued questioning of Hall, they also verified the information he gave
them concerning the whereabouts of "Mike" and "Dave," interviewed witnesses
at the bank, and arranged to have the bank's surveillance photographs
developed.2

At approximately 4:15 P.M. FBI Agent Martinolich, the case agent in charge of
the investigation, telephoned an Assistant United States Attorney to obtain
authorization for making the arrests of appellants. According to Martinolich's
testimony at the pretrial suppression hearing, the purpose of this procedure is to
permit the United States Attorney's staff to make a legal judgment as to whether
or not an arrest should be made and whether or not a warrant should be
obtained. The Assistant with whom Martinolich spoke authorized the agents to
make the warrantless arrests.

Martinolich then picked up the developed surveillance photographs and met

with other agents and detectives to plan the arrest procedures. Campbell and
Tartt were arrested in their respective apartments at approximately 6:00 P.M.,
and various items of evidence were seized during the arrests.3

The defendants moved prior to trial to suppress this evidence on the ground that
the warrantless arrests were unlawful, and that the evidence seized during the
arrests was obtained in violation of their Fourth Amendment rights. Judge
Pierce denied the motion after a five-day hearing, holding that exigent
circumstances justified the warrantless arrests, and finding no other basis for
suppressing the evidence seized from appellants' apartments.

DISCUSSION
9

For reasons that are thoroughly analyzed and explicated in our recent decision
in United States v. Reed, 572 F.2d 412, 417-424 (2 Cir. 1978), the warrantless
entry of law enforcement officers into the private home of a suspect, for the
purpose of making an arrest supported by probable cause, is barred by the
Fourth Amendment in the absence of "exigent circumstances," see United
States v. Killebrew, 560 F.2d 729 (6th Cir. 1977); United States v. Calhoun,
542 F.2d 1094 (9th Cir. 1976), Cert. denied, 429 U.S. 1064, 97 S.Ct. 792, 50
L.Ed.2d 781 (1977); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d
385 (1970) (En banc ). We have thus resolved in this circuit an issue that has
long been left open by the Supreme Court. See Coolidge v. New Hampshire,
403 U.S. 443, 480-81, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v.
Watson, 423 U.S. 411, 418 n. 6, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United
States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

10

The question before us on this appeal, therefore, is whether the circumstances

surrounding the arrests of Campbell and Tartt were sufficiently "exigent" to
excuse the agents' failure to obtain a warrant. The answer requires us first to
examine the meaning and limits of the term "exigent" in order to determine
whether the circumstances here may be so labelled.

11

The phrase "exigent circumstances" refers generally to those situations in which

law enforcement agents will be unable or unlikely to effectuate an arrest, search
or seizure, for which probable cause exists, unless they act swiftly and, without
seeking prior judicial authorization. For instance, officers in "hot pursuit" of an
armed robber who has just committed the crime may follow him into his home
without obtaining a warrant.

12
"Speed
here was essential, and only a thorough search of the house for persons and
weapons could have insured that Hayden was the only man present and that the
police had control of all weapons which could be used against them or to effect an
escape.
" . . . Here, the seizures occurred prior to or immediately contemporaneous with
13

Hayden's arrest, as part of an effort to find a suspected felon, armed, within the
house into which he had run only minutes before the police arrived. The permissible
scope of search must, therefore, at the least, be as broad as may reasonably be
necessary to prevent the dangers that the suspect at large in the house may resist or
escape." Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d
782 (1967).
14

Such "hot pursuit," however, is but an illustration, not a definition of the kind of
circumstances that justify a warrantless entry for the purpose of making an
arrest or search. Dorman v. United States, supra, 140 U.S.App.D.C. at 319, 435
F.2d at 391. The actual commission of a crime within a dwelling may also be
sufficient to permit an immediate entry. Police who witness an attempted
homicide or other crime of violence being committed by a person in his home
need not delay entry while first obtaining a warrant, since to do so would only
serve to tolerate the commission of the crime itself.

15
"When
law enforcement officers have probable cause to believe that an offense is
taking place in their presence and that the suspect is at that moment in possession of
the evidence, exigent circumstances exist. Delay could cause the escape of the
suspect or the destruction of the evidence." United States v. Watson, 423 U.S. 411,
435, 96 S.Ct. 820, 833, 46 L.Ed.2d 598 (1976) (J. Marshall, dissenting).4
16

In short, circumstances which, when viewed as of the time of entry, would lead
a reasonable person to believe that unless an entry and arrest are made
immediately the suspect may escape, destroy essential evidence or continue the
commission of an on-going crime, represent exigencies of the type justifying
immediate police action on probable cause without first obtaining a warrant.
See United States v. Santana, supra, 427 U.S. at 44, 96 S.Ct. 2406 (J. Stevens,
concurring); United States v. Titus, 445 F.2d 577, 578 (2d Cir. 1971), quoting
Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514
(1958). Among the factors deemed relevant in determining whether the
circumstances are sufficiently exigent to permit a warrantless entry and arrest
are:

17 the gravity or violent nature of the offense with which the suspect is to be
"(1)
charged; (2) whether the suspect 'is reasonably believed to be armed'; (3) 'a clear
showing of probable cause . . . to believe that the suspect committed the crime'; (4)
'strong reason to believe that the suspect is in the premises being entered'; (5) 'a
likelihood that the suspect will escape if not swiftly apprehended'; and (6) the
peaceful circumstances of the entry." United States v. Reed, supra, 572 F.2d 412,
424 (2d Cir. 1978), quoting Dorman v. United States, supra, 140 U.S.App.D.C. 320321, 435 F.2d 392-93 (footnotes omitted).

18

Applying these principles to the present case, we agree with Judge Pierce that
the government has met the burden of showing exigent circumstances to justify
the warrantless arrests of Campbell and Tartt in their apartments. The crime
was a serious and violent one armed robbery, punishable by imprisonment up to
25 years. The arrests were made at 6:00 P.M. on April 4, 1977, while it was
still daylight.5 The arrests were supported strongly by probable cause. Based on
information obtained from Hall, which was corroborated by the bank
surveillance photos and witnesses to the robbery, there was good reason to
believe that Campbell and Tartt had participated in the robbery, that they were
then in their apartments, that they were armed, and that they had in their
possession money robbed from the bank. Their knowing possession of the
money taken during the robbery alone constituted a separate and continuing
crime in violation of 18 U.S.C. 2113(c).6

19

There were also reasonable grounds to believe that the appellants may have
been informed of Hall's arrest, or may have surmised the same from his
absence, and that unless they were arrested immediately, they might attempt an
escape, taking advantage of the impending darkness. Moreover, had the officers
decided to set up surveillance of the apartments while waiting for a warrant to
be issued, they would have risked the possibility of detection by appellants. If
appellants had been alerted to the presence of the police, they might well have
had sufficient time to dispose of the stolen money and other evidence in their
possession. Furthermore, the risk of an armed confrontation would have thus
been heightened. To secure a warrant would have required the police and
agents to wait at least several more hours until the facts were fully
communicated to headquarters, typed in affidavit form, attested to, presented to
one of the district's busy magistrates, and a warrant obtained in due course.7

20

Viewing the totality of these circumstances, we cannot label as erroneous the

district court's finding that they were sufficiently exigent to allow immediate
entry and arrest. In reaching this conclusion we also take into consideration the
overall reasonableness of the behavior of the officers and police in this case. If
appellants' apartments had been raided immediately after Hall told the police
where "Mike" and "Dave" lived, the circumstances might have appeared more
"exigent" because the pursuit would have been hotter. On the other hand, such a
decision would not necessarily have been more reasonable from a constitutional
standpoint. Agent Martinolich testified that he did not want to make the arrests
until Hall's information concerning appellants' whereabouts had been
confirmed, and until the bank surveillance photographs were available to
facilitate identification, which was not until after 4:30 P.M. Moreover,
considerable time was expended checking out Hall's description of the premises
where Campbell and Tartt might be found.8 In addition, the officers showed

their respect for the Fourth Amendment by contacting an Assistant United

States Attorney prior to the arrests for an evaluation of their probable cause to
act, and a judgment as to whether a warrantless arrest would be legal.9
21

Such prudence on the part of law enforcement officers should not be

discouraged, which might well be the effect of a holding that the arrests in this
case were unconstitutional. Although we now know, with the aid of 20-20
hindsight, that Hall's earlier-furnished information was reasonably accurate, the
agents would hardly have been justified in giving his unverified statements
credence when they were first obtained. Once the information was verified,
which took time, the agents were not obligated by the Fourth Amendment, in
the face of such an emergency to then aggravate the existing risk of violence,
escape and destruction of crucial evidence by waiting until a warrant could be
obtained. United States v. Titus, 445 F.2d 577 (2d Cir.), Cert. denied, 404 U.S.
957, 92 S.Ct. 323, 30 L.Ed.2d 274 (1971).

22

Appellants also contend that even if the arrests were lawful the agents and
police unlawfully searched their apartments. Judge Pierce rejected this claim on
the ground that the evidence seized was either (1) taken incident to a lawful
arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685
(1969), (2) in plain view at the time of the seizure, Coolidge v. New
Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), or (3)
discovered pursuant to a consent search. Schneckloth v. Bustamonte, 412 U.S.
218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

23

Turning first to Tartt's challenge to the admissibility of a pair of pants and

jacket taken from his apartment, which were on a chair in the room where Tartt
was arrested, since they were in plain view of the officers who were lawfully
present, their seizure was valid. Coolidge v. New Hampshire,supra, 403 U.S.
443, 464-73, 91 S.Ct. 2022, 29 L.Ed.2d 564.

24

Campbell's challenge to the admissibility of the shotgun, shells, and $10,000

found in his apartment is more troublesome. Rejecting Campbell's testimony to
the contrary, Judge Pierce, on the basis of other proof, found that Campbell
voluntarily consented to a search of his apartment, including the locked
nightstand where this evidence was found. Moreover, he found that the key to
the nightstand was given to the officers "at Campbell's request" by a friend of
Campbell who was present during the arrest. The money, which was in a small
suitcase, was found by an officer who seized the suitcase while securing the
apartment. Judge Pierce held that the suitcase was properly seized because it
was within the area into which an "arrestee might reach in order to grab a
weapon or evidentiary items." Chimel v. California, supra, 395 U.S. 752, 762-

63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685.

25

Judge Pierce reached these findings after a five-day hearing during which he
heard the testimony of the law enforcement officers involved, as well as that of
the defendants and others who were present in the apartments at the time of the
arrests. Resolution of the conflicts in testimony concerning the search of
Campbell's apartment was essentially a question of credibility for the district
judge, whose findings we will not disturb unless they are clearly erroneous.
United States v. Wiener, 534 F.2d 15, 17 (2d Cir. 1976). Absent proof of any
such error, we accept the trial judge's appraisal and findings.

26

Finally, Tartt contends that the in-court identification of him by a bank teller
was unfair in that the identification witness had not attended a pretrial line-up.
This claim is without merit. We recently held that "a defendant has no
constitutional right to a line-up." United States v. Estremera, 531 F.2d 1103,
1111 (2d Cir. 1976). Whether or not a court orders a line-up is a matter within
the sound discretion of the trial judge. Id. We cannot find that Judge Pierce
abused his discretion in permitting one witness to make an in-court
identification even though she had not first made a selection from a line-up.

27

There is no serious claim that the witness lacked a reliable basis for her
identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d
140 (1977). No "taint" hearing out of the jury's presence was requested. Indeed,
it was not even contended that this particular witness had been subjected to any
unfairly suggestive influence. The witness was a bank teller who testified that
she saw Tartt, who wore no mask, for between one and two minutes when he
approached her, stated "this (is) a bank robbery," and instructed her to move
back from the counter. Although Tartt's counsel objected to the in-court
identification, he did not request that Tartt be accorded at trial the equivalent of
a line-up, in or out of the jury's presence, which Judge Pierce would probably
have granted. The jury, moreover, did observe the in-court identification, about
which the witness was fully cross-examined, and there is no suggestion that the
government impeded the witness from participating in an earlier pretrial line-up
held at Tartt's request, in which the other bank witnesses participated. Under
the circumstances, it is clear that the identification testimony was not unfairly
prejudicial for lack of a prior line-up.

28

For the foregoing reasons, we affirm the convictions of both appellants.

On September 19, 1977, Judge Pierce sentenced Campbell to a term of

imprisonment of four and a half years. He sentenced Tartt to concurrent terms

of imprisonment of five years and 10 years
2

Some of the delay in making the arrests was attributable to confusion that arose
concerning the information Hall gave the police about the apartment building
where he, Tartt, and Campbell lived. Initially Hall told the police that "Mike"
and "Dave" lived at 579 Academy Street, and that Mike's apartment number
was 4B. Agents sent to verify this information discovered that the apartment
building at 579 Academy Street had no apartment numbered 4B
Hall later clarified the location of the apartments. He told the officers that the
apartment building had two addresses 571 and 579 Academy Street and that
Mike's apartment, numbered, 4B, could be reached from the 571 Academy
Street entrance. Hall also told the agents that the entrance to Dave's apartment
was on Post Avenue and that a blue rug was in front of the door to his
apartment. This information was verified by federal agents and the police prior
to the arrests.

The two arrests were made simultaneously. A group of federal agents and
police officers went to Campbell's apartment, knocked, and identified
themselves. When Campbell opened the door, he was arrested. The following
items were seized from his apartment and introduced into evidence at trial: (1)
$10,000, including several bills, the serial numbers of which matched those of
bills whose numbers had been recorded by the bank before the robbery, i. e.,
"bait money," (2) a black vinyl suitcase, (3) a shotgun and shotgun shells, (4) a
white ski cap and a jacket which matched the description of clothing worn by
one of the bank robbers
While Campbell was being arrested, a second group of agents and detectives
went to Tartt's apartment, knocked on the door, and identified themselves. The
testimony at the suppression hearing was that the officers then heard what
sounded to them like footsteps running away from the door. They then forced
the door open and arrested Tartt, whom they found in the bedroom of the
apartment. A pair of pants and a jacket were seized by the agents and were later
introduced at trial; they also matched a description of clothing worn by one of
the bank robbers.

The passage from Justice Marshall's dissent in Watson obviously refers to an

arrest in a public place, but the rationale seems equally applicable to that
narrow category of cases in which a law enforcement officer, though not on the
premises, becomes aware of an incipient or on-going crime within a dwelling.
At that point, the officer would have probable cause to act, and the exigent
circumstances of the situation would compel that he do so without first

obtaining a warrant
5

An additional factor to be assessed in gauging the reasonableness of a

warrantless entry relates to the time of the entry, especially whether it is made
at night. Since a nighttime entry may more seriously intrude on protected
privacy interests than a daytime entry, Jones v. United States, supra, at 498, 78
S.Ct. 1253; Dorman v. United States, supra, 140 U.S.App.D.C. at 317, 435 F.2d
at 389, the government may face a heavier burden in demonstrating the
reasonableness of its action than it otherwise would

18 U.S.C. 2113(c) prohibits the receipt or possession of "any property or

money or other thing of value knowing the same to have been taken from a
bank, credit union, or a savings and loan association, in violation of subsection
(b) of this section . . . ."

Agent Martinolich testified during the suppression hearing that it takes between
four and five hours to obtain an arrest warrant in the Southern District of New
York. This testimony was uncontradicted, and was credited by Judge Pierce

See note 2, Supra

We do not suggest that an Assistant U.S. Attorney possesses the neutrality and
detachment of a judicial officer, Johnson v. United States, 333 U.S. 10, 13-14,
68 S.Ct. 367, 92 L.Ed. 436 (1948), or that the procedure described in this
opinion could possibly satisfy the warrant requirement. But the fact that the
agents submitted their information to someone, even a prosecutor, for a
judgment as to its legality prior to taking any action, is indicative of attitudes
and behavior which the warrant requirement and exclusionary rule seek to
foster. See United States v. Titus, supra, 445 F.2d 577, 579